“Far from Perfect,” but a “Step in the Right Direction,” Activists Say

Six years after it stunned its staff by rejecting a plan to slash oil refinery and related industrial nitrogen oxide emissions in favor of a last-minute industry substitute, the South Coast Air Quality Management District board unanimously approved a replacement. The new plan (known as Rule 1109.1) puts an end to the failed indirect regulation of the “cap and trade” RECLAIM system, established in 1993, which allowed facilities to avoid pollution-reducing improvements by buying underpriced “pollution credits.”

But the plan still allows facilities to choose implementation methods, with five different timetable options available for the nine refineries and seven plants in related industries to which it applies. It’s projected to meet federal clean air standards in 2023, as well as 2031, with total cuts of almost 8 tons per day, almost half by the end of 2023. It’s expected to cost $2.3 billion (less than one cent per gallon in gas prices), with $2.6 billion worth of health benefits, while adding 213 jobs per year.

While the new plan drew support from all sides, industry support was decidedly more enthusiastic. Legal and community environmental justice advocates called it “far from perfect,” “long overdue,” and “a step in the right direction,” but with “far too much flexibility” that’s “going to require a lot of follow-up,” while industry representatives gave it full-throated praise, calling it “a strong rule,” “most stringent,” and “meticulously crafted.”

The 2015 decision reflected a shift in political control of the board, from Democrats to Republicans, but was supported by LA Councilmember Joe Buscaino — nominally a Democrat, but frequently allied with the industry he was appointed to regulate. RECLAIM’s cap-and-trade system was supposed to promote the most cost-effective way to meet pollution-control goals. But it was so badly broken it required a major overhaul, with sharply reduced target levels of nitrogen oxide pollution. The industry substitute dramatically rolled back the reductions, undermining the rule’s whole purpose.

AQMD staff warned the board it would be sued, which it quickly was, and environmentalists prevailed at trial in November 2017. By that time, partisan control of the board had shifted again, and Buscaino voted with the other Democrats in a 7-6 March 2017 decision to end RECLAIM entirely, and return to direct regulation of polluting factories — no more trading of credits — “as soon as practicable.” Almost five years later, that decision has finally born fruit.

Alicia Rivera, Wilmington organizer with Communities for a Better Environment began the public comments with a bit of a history lesson. “Most of you are new, in the board, and maybe are unaware that in 2015 this could have started, reducing nitrogen oxide. But instead the refineries showed up last minute, and thanks to Boardmember Buscaino, shamefully they were able to get what they wanted,” she said. Buscaino and Orange County Supervisor Shawn Nelson were responsible for pushing the refineries substitute plan onto the agenda. Nelson (who’s no longer on the board) formally introduced it and Buscaino seconded it.

This is the second major rule approved by AQMD this year after years of delay, and Buscaino played a role in delaying the first one as well. On May 7, it adopted the Warehouse Indirect Source Rule (ISR), requiring warehouses greater than 100,000 square feet to directly reduce nitrogen oxide and diesel particulate matter emissions, or mitigate exposure in nearby communities. Industry opposed that rule and is now fighting it in court. Buscaino voted for it this time, after years of being a leading opponent—as noted by the Los Angeles Times in April 2018, for example. But his vote was uncertain till the end, according to activists involved.

The week before the vote, Buscaino was one of “The Fossil Fuel Four” on the AQMD board targeted by California Environmental Voters (aka “EnviroVoters”) with a new website and ad campaign highlighting how four board members — three Republicans, representing Republican-leaning areas in Orange and San Bernardino counties, plus Buscaino, appointed by Mayor Eric Garcetti to represent heavily Democratic LA — have favored corporate polluters who’ve contributed to their campaigns. Buscaino’s contributors include California Independent Petroleum Association, E&B Natural Resources Management Corporation, American Chemistry Council, California Resources Corporation, and Pacific Coast Energy Company.

The result was “a trend and a pattern of inaction,” EnviroVoters organizer Resa Barillas told Random Lengths News.“We’re finding that what’s most dangerous about bad appointments like Buscaino is that they don’t necessarily have to actively do anything to do a lot of damage. In fact, they cause the most damage by doing absolutely nothing. Which is part of the problem with Buscaino,” she said. “This refinery rule should have passed a long time ago.” So should an ISR for the ports, similar to the Warehouse ISR passed in May. “But instead, because the person who is representing this area isn’t actively taking the lead on these issues that directly affect his constituency, we’re not seeing these actions moving as quickly as we need them to.”

Even “with the Warehouse ISR, he was on the fence,” Barillas said. “He knew we couldn’t count on him,” despite years of pressure from activists and community members suffering from asthma and other health impacts. In the end, “It seemed that the only reason he jumped on board with it was because it was something that [now retired] Chairman [William] Burke was championing, and he wanted to go out with a bang.”

Themes of delay and inadequacy cropped up repeatedly in public comments at the AQMD board meeting. Barillas herself called the rule “severely overdue,” but she was hardly alone.

“This is long overdue for the overburdened communities where the refineries are close by,” said Ana Gonzalez, representing the Center for Community Action and Environmental Justice. She went on to call it “a step in the right direction,” but warned “We need to do more to make sure we get to zero emissions because zero emissions equals zero health impacts.”

“While this rule is far from perfect, it does represent the most significant step towards fulfilling this agency’s commitment to sunset the failed nitrogen oxide RECLAIM program,” said Earthjustice attorney Oscar Espino-Padron. “It’s time to adopt this long overdue rule.”

“Both the problem and the solution have been well known for years,” said Catherine Ronan, representing the Sierra Club. “The RECLAIM cap and trade program adopted in 1993 was deemed a failure years ago, but it has yet to be replaced by strong direct regulation,” she said.

“This is an urgent problem that requires prompt action. Delay and kicking down the road has only made matters worse.”

Julia May, senior scientist with Communities for a Better Environment, had something more precise and pointed to add. “I’m sorry to have to remind AQMD that CBE published a paper in 1999 warning the RECLAIM program would fail,” she said. “And since then our members in Wilmington and surrounding areas have been subject to the harsh pollution all this time.”

In fact, that paper analyzed two AQMD pollution trading programs as model examples, illustrating fundamental flaws in the real world use of such programs: the Mobile Source Credits (aka “car scrapping” program) and RECLAIM. Each had been in place for more than five years, and promised benefits had not resulted in either:

Pollution trading in Los Angeles has led to concentrated toxic air emission hot-spots that have shackled low-income and minority communities with the region’s air pollution. Pollution reductions have been far less than those promised by trading proponents. Furthermore, pollution trading has virtually eliminated public participation in the environmental decision-making process.

RECLAIM had a specific problem with ‘phantom reductions’ that existed only on paper, because “emissions reduction credits were initially allocated in an amount significantly inflated above actual emissions.” As a result the paper reported, “In the first three years of the RECLAIM program, actual industrial nitrogen oxide emissions have declined by at most three percent, while allowable emissions have been reduced on paper by about thirty percent.” This problem persisted throughout the life of the RECLAIM program. That was 22 years ago. But the plug wasn’t pulled until just last week.

“Like the state greenhouse gas program, these pay-to-pollute systems are set up to be cheap, and have resulted in refineries not investing in cleanup,” May said in her comment.

In light of all that, “We support adoption,” she said, “but we have a strong warning today, due to the weakening measures and alternative compliance plans, and exemptions” — the very things in the plan that industry representative Michael Carroll, a lawyer representing the Western States Petroleum Association, praised as “meticulously crafted.”

“It’s going to require a lot of follow-up,” May warned. “We don’t want to wait another 10 years to find out we’ve failed again.” To avoid that, “We’re asking the board, and urging the board and staff to do regular staff reports and to talk about this in your subcommittees, publicly. That’s going to be essential to get the reductions.”

The need for follow-up was not only echoed by other activists, it was brought up by board members as well, and a requirement for a quarterly progress report was added an amendment before adoption of the rule — a hopeful sign of a more transparent future, perhaps.